Haji v. Canada (Minister of Citizenship and Immigration), 2003 FCT 528

Date: 20030429

Docket: IMM-2903-02

Citation: 2003 FCT 528

Ottawa, Ontario, this 29^th day of April, 2003.

Present:           THE HONOURABLE MR. JUSTICE KELEN      

BETWEEN:

                                                        MUHAMMAD MUNIR HAJI

                                                                                                                                                         Applicant

                                                                              - and -

                                                                THE MINISTER OF

                                                CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Refugee Division"), dated May 9, 2002, wherein the Refugee Division determined the applicant was not a Convention refugee.

[2]                 The issues raised in this application are:

(a)                  whether the Refugee Division erred in applying the doctrine of res judicata to the applicant's claim; and

(b)                 whether the Refugee Division erred by dismissing the applicant's claim as not credible.

FACTS

        The applicant is a Pakistani man who left Pakistan in 1990 and came to Canada via the United Arab Emirates, Saudi Arabia and the United States in 1992. Upon his arrival in Canada, the applicant made a refugee claim based on his work as the Secretary, Publication and Propaganda, for the Jamiat-e-Ulema-i-Islam ("JUI"), a Sunni political organization operating in Pakistan. His claim was denied by the Refugee Division on March 31, 1994. His application for leave for judicial review was dismissed by this Court because of his failure to file an Application Record. The applicant was deported to the United States on April 15, 1997, but returned to Canada later that year and made a second refugee claim pursuant to subsection 46.01(5) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").

[4]                 The applicant's second claim was heard by the Refugee Division on May 18, 1999 and dismissed on July 30, 1999. The decision was set aside by Pelletier J. (as he then was) on July 21, 2000 due to a large number of factual errors that had been made by the panel, see Haji v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 141. Although the applicant's second claim was based largely on the same facts as his first claim, the panel did not address the issue of res judicata in its decision. In allowing the application, Pelletier J. noted this at para. 3:

His second refugee claim was essentially a replay of his first claim with some additional material added in support of his claim. While the CRDD would have been entitled to raise the question of res judicata on the authority of Vasquez v. M.C.I. [1998] F.C.J. No. 1769, a decision of Mr. Justice Rothstein (as he then was), it did not do so.

[5]                 The matter was returned to the Refugee Division and a new hearing was held on April 26, 2001 and September 5, 2001. In his decision, the panel member dismissed the claim because the matter was res judicata with respect to evidence of persecution prior to March 31, 1994, and the applicant's story was found to be not credible. On the matter of res judicata, he stated:

The fact that there was a prior determination by a credible basis tribunal gives rise to the question of res judicata for all incidents of persecutory evidence prior to March 31, 1994, the date of the first decision. The panel reviewed the direction given the Convention Refugee Determination Division (CRDD) by the Federal Court in the case of Vasquez. Both counsel and the Refugee Claim Officer (RCO) opposed its consideration - counsel feigning surprise and the RCO arguing that the narratives in the two Personal Information Forms (PIF's) are so contradictory as to constitute entirely separate refugee claims.

[...]

This was a de novo hearing. It is with this background that the panel was invited, once again to ignore res judicata. To do so, however, would be tantamount to the CRDD according itself virtual appeal rights over itself. [Footnotes omitted.]

The panel member went on to consider the decision in Vasquez and adopted its reasoning. He considered events that occurred prior to March 31, 1994 only for the purposes of adjudging credibility.

[6]                 On the issue of credibility, the Refugee Division found "many flaws in this highly improbable story." The panel member noted inconsistencies with the applicant's name and the events described in his two PIFs, and dismissed his documentary corroboration because it is easy to obtain fraudulent documents such as false arrest warrants and police reports in Pakistan. The panel member also found it hard to believe that the applicant, who has not returned to Pakistan for over a decade, was still at risk there and had a warrant issued for his arrest in 1997, seven years after he left the country. He concluded the new elements of the applicant's story were "concocted because his first claim had failed."

STANDARD OF REVIEW

        The first issue in this application is a question of law and the appropriate standard of review is correctness. The second issue involves a determination of the applicant's credibility, a task which is within the expertise of the Refugee Division, see Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1194 . The appropriate standard of review on findings of credibility is patent unreasonableness.

ANALYSIS

1.          Res judicata

        The dispute between the parties on this issue centres on what is appropriate interpretation of Mr. Justice Rothstein's decision in Vasquez,supra. In Vasquez, the applicant was found not to have a credible basis for a Convention refugee claim on April 23, 1992 and left Canada. He returned to Canada in 1994 and made a second Convention refugee application. That application was dismissed on April 25, 1997 by the Refugee Division, who refused to consider evidence pre-dating April 23, 1992. The decision was upheld by Rothstein J., who found that issue estoppel (a form of res judicata) applied. He stated at para. 8:

The principle is that a party, having received a final decision, is prevented from relitigating the matter notwithstanding that the party has found supplementary arguments that were available at the time of the original litigation. That is what the applicant was attempting before the CRDD. However, the credible basis tribunal found that there was no credible basis for the applicant's Convention refugee claim. In essence, it found he could not be a Convention refugee in Canada, the same issue as before the CRDD in 1997.

[9]                 The applicant argues that Vasquez is not applicable to the case at bar. He contends the doctrine of res judicata cannot be applied to a de novo hearing after a successful application for judicial review when the issue was not raised by the Refugee Division in its initial decision.

[10]            This issue has already been determined by this Court. In Jeyaseelan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 356, the applicants were in virtually the same position as the applicant in the case at bar. Their initial claim had been denied in 1996, but the applicants made a second claim that was set aside on judicial review. The panel at the third hearing relied upon the findings of the first panel and cited Vasquez as support. McKeown J. approved of the Refugee Division's use of Vasquez, stating at para. 4, "the Board in this case correctly stated that it was not a de novo hearing in the sense of reviewing all of the evidence but only the evidence of changes since the first claim." Therefore, the Refugee Division was correct not to consider evidence of persecution prior to March 31, 1994 as part of the substance of the claim.

[11]            The applicant also argues the panel's decision on res judicata was a violation of procedural fairness. At the hearing, the panel member indicated he wanted the parties to address the issue of res judicata and they did so. After that issue was addressed, the hearing proceeded on the basis that the member would consider all facts, both pre-1994 and post-1994, and at the conclusion of the hearing submissions were made by both sides on that basis. The applicant submits the decision of the member to hear all of the evidence constituted a ruling that the doctrine of res judicata did not apply. The applicant argues it is a gross denial of natural justice for a panel to make a ruling at a hearing, causing evidence or submissions to be presented in a way that is restricted to certain issue, only to retract that ruling in a final decision without notice.

[12]            The Court disagrees with the applicant's characterization of the panel member's comments, which are found at p. 812 of the Tribunal Record:

Considering the argument of both counsel and the RCO, both whom are essentially saying that I should be very careful before I apply res judicata in this case, but are doing so on different reasons with different arguments.

I am impressed with the RCO's suggestion that it may be the case that we're looking at very different allegations and it may not be appropriate for me to simply say these are issues of credibility, so I am, on that basis - - and I should point out as well that I think - - I don't know whether this was said on the record or not, but counsel correctly said that the 1994 decision was really not dealt with on its merits by the Federal Court.

On the basis of all of those comments I am prepared to re-hear everything that the claimant wishes to put forward with regard to why he is a Convention refugee, regardless of when the events occurred. Okay? Is that reasonable?

Just a matter of interest, the Vasquez decision, is that under appeal or is the Federal Court - - has the Appeal Division looked at that case at all?[Emphasis added.]

[13]            The panel member was not issuing a final ruling on res judicata when he made these comments. It is apparent from the language that the panel member was reserving his decision on the matter. This is demonstrated by the use of the word "may"and the phrase "I am prepared to", as well as the panel member's reference to Vasquez, supra. It was a prudent decision for the panel member to hear all of the evidence at the hearing before making a determination on res judicata. If he had not heard all of the evidence and later decided res judicata did not apply, another sitting would have been necessary.

[14]            Furthermore, this case is unlike Velauthar v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 425 (C.A.) (QL), which has been cited by the applicant. In Velauthar the Refugee Division stated the "only issue was whether that persecution was encompassed in the Convention refugee definition" and then proceeded to negate its stipulation by finding the applicant not credible. In contrast, the panel member notified the applicant at the hearing that the issue of res judicata was in play and gave his counsel an opportunity to make submissions on that point. This issue had originally been raised by Pelletier J. in his decision. The panel's reliance on res judicata should not have come as a surprise to the applicant.

2.          Credibility

      The applicant challenges the Refugee Division's reliance on pre-1994 facts in evaluating credibility despite its finding on res judicata. The applicant argues this is not a correct or fair application of Vasquez, supra.

[16]            The Refugee Division did not make an error in examining pre-1994 events when evaluating the applicant's credibility. While the doctrine of res judicata bars an applicant from relying on grounds that were raised or could have raised at an earlier hearing, it does not prevent the Refugee Division from considering that evidence in subsequent claims. If the Court were to accept the applicant's submission, it would allow applicants to freely change their stories in each subsequent claim without having their credibility impugned even if their stories were contradictory. Such an interpretation would undermine the integrity of the refugee protection system.

[17]            The applicant's remaining submissions can be easily dismissed. He has argued the Refugee Division demonstrated cultural insensitivity by placing a great deal of importance on inconsistencies with the applicant's name. The panel member did not err in this finding, he highlighted this as one of a number of inconsistencies in the applicant's story. Likewise, the applicant's argument that the panel member based his decision on the applicant's "profile" is a misreading of the panel's reasons. The Refugee Division did not believe the applicant's claim that he was still a target in Pakistan. The panel member cited the lack of a high political profile and the applicant's absence from the country for more than a decade as support for this conclusion. The Refugee Division's finding on this matter was reasonable.

[18]            Neither party proposed a question for certification. The Court declines to certify a question.

                                                                            ORDER

THIS COURT ORDERS THAT:

This application for judicial review is dismissed.

"Michael A. Kelen"                                                                                                          ________________________________

                                                                                                                 J.F.C.C.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-2903-02

STYLE OF CAUSE:             MUHAMMAD MUNIR HAJI v. MCI

DATE OF HEARING:                        APRIL 17, 2003

PLACE OF HEARING:                      Toronto, Ontario.

REASONS FOR ORDER

AND ORDER BY:                               The Honourable Mr. Justice Kelen

DATED:                                                 APRIL 29, 2003

APPEARANCES BY:                          Douglas Lehrer

                                                                                                                                                             

For the Applicant

Tamrat Gebeyehu                                                  

                                                         

For the Respondent

SOLICITORS OF RECORD:           Douglas Lehrer

Vander Vennen Lehrer

Barrister and Solicitor

45 St. Nicholas Street

Toronto, ON M4Y 1W6

                                                                

Tel:416-963-8405

Fax:416-925-8122

For the Applicant

Tamrat Gebeyehu

Department of Justice

130 King Street West, Suite 3400, Box 36

Toronto, Ontario

M5X 1K6

Tel:416-973-9665

Fax:416-954-8982

For the Respondent                                                              

             FEDERAL COURT OF CANADA

                                                                                   Date: 20030429

                                                 Docket: IMM-2903-02

BETWEEN:

MUHAMMAD MUNIR HAJI

                                                                         Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                     Respondent

                                                   

REASONS FOR ORDER

AND ORDER